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Advice on security of tenure


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Julie McStay

 

Julie McStay outlines what providers can do when residents and families are behaving badly and need to leave.

We are frequently asked to provide advice in relation to security of tenure arrangements. More particularly, we are often asked to advise what action a provider can take to protect its staff and other residents where a resident who does not have a cognitive impairment behaves in a way that places the wellbeing and safety of staff or other residents at risk.

In this article we explain the security of tenure provisions that are contained in the User Rights Principles (Principles) of the Aged Care Act 1997 (Act) and make some suggestions for your resident agreements and processes to ensure you are compliant with the provisions and have processes in place to minimise your risk of non-compliance when asking a resident to leave. We have also provided some suggestions to manage those instances where it is the resident’s family that are creating problems for the provider rather than the resident.

Residents

The security of tenure provisions are intended to provide aged care residents with high levels of certainty. Aged care providers have an obligation to act reasonably in the provision of a safe and secure environment for their residents and their employees and to provide appropriate levels of care for their residents.

A provider can only ask a resident to leave if there is a basis for them to do so under the Principles namely:

  • the facility is closing;
  • the service no longer provides care and accommodation relevant to the resident’s long-term care needs and the provider has not agreed to provide that care;
  • the resident no longer needs the care provided through a residential service;
  • the resident has not paid any agreed fee to the approved provider within 42 days after the day when it is payable for a reason within the care recipient’s control;
  • the resident has intentionally caused serious damage to the facility or has intentionally caused serious injury to an employee of the approved provider or to another resident; or
  • the resident is away on leave for more than seven days for a reason other than as permitted by the Act.

The provisions are complex and onerous. On their face, they make it a practical impossibility for an aged care provider to require that a resident leave their facility, regardless of the behaviour of that resident because the provider cannot ask the resident to leave “until suitable alternative accommodation is available that meets the care recipient’s long-term needs.”

The Commonwealth Department of Health issued an alert on these provisions earlier this year which was not accurate. The alert stated that a provider has an obligation to identify and “secure” suitable alternative accommodation, but this is not an accurate description of the requirements of the legislation.

The Act provides that a provider can ask a resident to leave (in certain defined circumstances) provided “suitable alternative accommodation is available”. While it is the provider’s responsibility to ensure that suitable alternative accommodation is available, (affordable to the resident and suitable to their long-term assessed care needs) a provider does not have to “secure” a place for a resident and the place that is available does not necessarily have to be acceptable to the resident who is being asked to leave.

The provisions should reasonably enable an aged care provider to require a resident to leave their facility if the resident (for a reason within their control) behaves in an inappropriate way that places the staff and other residents of a facility at risk.

We are not suggesting that a provider should be able to ask a resident to leave if the behaviour is due to a resident’s cognitive impairment (unless the provider is no longer able to care for that resident and has not promised to do so) but when a resident with no cognitive impairment acts in a way that places staff and other residents at risk, surely a provider should reasonably be able to ask that resident to leave their facility.

The security of tenure provisions do not allow a provider to terminate the agreement in these circumstances. However, a provider can lawfully terminate an agreement on contractual grounds and ask a resident to leave in these circumstances, provided the resident agreement has the appropriate provisions.

In Willoughby Retirement Community Association v Frey (2007), the Supreme Court of New South Wales held that while the purpose of the security of tenure provisions is to establish when a provider can ask or require a resident to leave a facility, a resident agreement can also be terminated for the breach of a substantial or fundamental term of the agreement, just like any other contract.

The court found, however, that if even in those cases where there has been a breach of the agreement that entitles the provider to terminate the contract, the provider can only give a valid notice to terminate if the provider has followed the procedural requirements set out in the security of tenure provisions.

Accordingly, a provider can require a resident to leave the facility when:

  • the resident has committed a fundamental breach of the resident agreement which entitles the provider to terminate the agreement and the provider has followed the procedural requirements in s.23.6 of the Principles; or
  • there is a basis to ask or require the resident to leave under s.23.5 of the Principles and the provider has followed the procedural requirements in s.23.6 of the Principles.

Providers must be able to demonstrate that their resident agreements and processes comply with the security of tenure provisions in the Act and the Principles and otherwise comply with the law.

We suggest you review your resident agreement to define the circumstances of a material breach that would give the provider a right to terminate i.e. that enable you to comply with the security of tenure provisions and to grant a right to terminate the agreement on contractual grounds and require a resident to leave.

Family members

Another increasingly problematic issue for providers is where the members of the resident’s family, rather than the resident, are behaving in a way that places the provider’s staff and other residents at risk of harm.

We have been asked to advise on some extraordinary situations where dissatisfied family members have abused, bullied, threatened, harassed, intimidated and in some extreme circumstances even physically attacked staff members.

There is no doubt that a family member who has a legitimate concern or complaint about the care and services being provided to their loved one has the right to express those concerns and that providers have a consequent obligation to investigate those complaints and respond in an appropriate way. However, a provider’s principal obligations are to their residents and to their staff.

Where the behaviour of a family member threatens to compromise the provider’s ability to provide care and services to residents and/or their duty of care to their staff then the provider must take action in response to the family member’s behaviour.

The security of tenure provisions relate only to the resident and not to their family members. A provider has the right to exclude anyone from their facility in the event they are behaving in a way that places any person on their premises at risk and whilst excluding a family member from a facility should be a last resort, the provider clearly has this right and as soon as the family member starts to behave in an inappropriate manner, the provider needs to take action in response.

We suggest you consider the following:

  • Include in your pre-admission materials some rules about expected conduct of family members and a copy of your complaints process.
  • Take immediate action in response to a family member who acts in a way that is inappropriate and places your staff or residents at risk. These situations rarely improve over time.
  • Clearly identify the behaviour that is inappropriate and ask the family member to desist.
  • Investigate complaints by a family member and ensure you are following your own processes. Keep the family member informed about the progress of your investigations.
  • Give the family member an opportunity to respond to the issues and remedy their behaviour.
  • Remind the family member that unless they desist that the provider has the right to ask them to leave.

Do not be afraid to take decisive action if you have set some expected rules of behaviour, identified the inappropriate behaviour and asked the family member to desist. If the behaviour continues you are well within your rights to exclude the family member from the facility. However, if it gets to this point it would be wise to obtain legal advice as to the steps you take to actually exclude the family member.

You can also consider introducing a term in your resident agreement that requires the resident (to the extent they are able) to ensure their guests comply with some minimum rules of appropriate behaviour. Whilst it is arguable as to whether you can rely on this as a basis to exclude the family member, it does provide a further opportunity to remind both the family members and the resident about your expectations with respect to appropriate behaviour.

If you haven’t recently reviewed your resident agreements and processes to ensure you are both compliant with the security of tenure provisions and have policies and procedures in place to minimise your risk, it might be time to do so.

Julie McStay is a director of Hynes Legal.



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